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Teetea v Republic [1996] KIHC 101; HCCrC 27.91 (20 September 1996)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrC 27/91

MAREWENTEUEA TEETEA

versus

THE REPUBLIC

Mr T Teiwaki for the Applicant
Mr D Sim for the Respondent

JUDGMENT

The applicant is one of 6 accused charged with manslaughter. He applies to be acquitted of that charge on the ground that he has been denied the right of a fair hearing within a reasonable time guaranteed by Section 10(1) of the Constitution.

Section 10(1) reads as follows:

"If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law".

It is common ground that the major reason for the delay in this case is the absence from Kiribati of Dr Janet O'Connor, the only person in a position to give medical evidence as to the cause of death of the victim in this case.

The alleged offence occurred on the 24th March 1991. On 25 February 1993 an indictment was filed and the applicant appeared in court the same day to enter a plea of not guilty. The case was fixed for hearing on 20 May 1993 but on that date the doctor was not available to give evidence. Counsel for the applicant told the court that he would not consent to a medical report being tendered as he wished to cross-examine the doctor. By consent of all parties the case was adjourned to the May 1994 session of the High Court for mention and for trial, either then or at the following 1994 session.

According to the affidavit of State Advocate Pole Atanraoi it was later learned that the doctor would not be returning until late 1994. During that period and for the first few months of 1995 the case could not be set down as the High Court was not sitting, owing to a vacancy in the office of Chief Justice.

The case next came before the Acting Chief Justice on 22 May 1995. The doctor was still overseas so the case was adjourned for mention to 5 June 1995. On that date the doctor was still overseas.

The case next came before the court on 9 October 1995. It is significant that Mr Teiwaki, counsel for the applicant, did not come to court that day and no explanation was given for his absence. At that stage Mr Berina, counsel for 3 of the other accused, had filed an application identical to the present one and this application was set down for hearing on 6 November 1995.

On 6 November 1995 Mr Berina indicated that he was satisfied with the explanation for the delay given in the prosecution's affidavit and withdrew his application. The case was then set down for hearing on 24 June 1996.

Of that date, the applicant deposes: "On the 23rd June 1996 the case was called for hearing but because the Honourable Chief Justice was away and other reasons the case was adjourned until the 24th June 1996". The applicant has his dates wrong. The 23rd of June was a Sunday. The case in fact came before the court on Monday 24th June.

My instructions to Commissioner Suttill for the 24th June were to adjourn the case until the next day when I would be able to hear it. The "other reasons" glossed over by the applicant were in fact the real cause of the case not being able to be heard at all at that time. On the 24th June there were appearances by counsel for the Republic and counsel for the last-named accused on the indictment. The applicant was present but not Mr Teiwaki his counsel. Mr Berina and his 3 clients were also absent and warrants of arrest were ordered to be issued.

On the following day, 25 June, the case still could not proceed. Mr Berina was now present but his 3 clients were still absent. Also the prosecution's witnesses had not been brought to court; they were still on Butaritari. And again, the doctor was still overseas. The case was therefore fixed for hearing on 7 October 1996.

The present application was filed two days later, on 27 June 1996.

Counsel for the applicant and counsel for the Republic have made written submissions citing many authorities - some relevant, some not - in support of their arguments. I do not think it is necessary to refer to all of them here.

One case which is germane to the present issue is the Privy Council case of Bell v. DPP and Anor (1986) LRC (Const.) 392. The Privy Council, in following Barker v. Wingo [1972] USSC 146; 407 US 514 (1952), held that relevant factors for consideration in a particular case where unreasonable delay is alleged include: (i) the length of the delay; (ii) the reasons given by the prosecution to justify the delay; (iii) the responsibility of the accused for asserting his rights; and (iv) the likelihood of prejudice to the accused resulting from the delay.

Their Lordships acknowledged the relevance and importance of those four factors and the desirability of applying the same or similar criteria to any constitution which protects an accused from oppression by delay in criminal proceedings. Their Lordships were careful to point out, however, that the weight to be attached to each factor must vary from jurisdiction to jurisdiction and from case to case. The courts must balance the constitutional guarantee of the fundamental right to a fair hearing within reasonable time against the public interest in the attainment of justice, in the context of the local legal system and the economic, social and cultural conditions prevailing.

I propose now to deal with the applicability of these factors to the present case.

(1) Length of Delay

"The question is, at what point does the delay become unreasonable?" (Sopinka J. in R v. Smith (1989) 52 C.C.C. (3d) at p. 105). The answer is to be found in a consideration of the facts in the particular case.

The delay to be considered is that following the date of the charge, not the date of the offence. (Republic v. Taabere and Anor (1985) LRC (Crim.) 8. In the present case the period from arraignment (25 February 1993) to trial (7 October 1996) will be not quite 3 years and 8 months.

The Privy Council in Bell (supra) cited Powell J. (Barker v. Wing) as follows:

"Until there is some delay which is presumptively prejudicial, there is no necessity for enquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an enquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge".

The present case is a serious one in which 6 accused were originally charged with manslaughter by beating the victim to death. Charges have since been withdrawn against two of the accused.

Nevertheless, the length of the delay - 3 years and 8 months - must be regarded as presumptively prejudicial, necessitating enquiry into the other factors.

(2) The reasons given by the prosecution to justify the delay.

The unavailability of medical witnesses is a problem which has plagued and continues to plague the administration of justice in Kiribati. Kiribati is a young country with very limited economic resources. There is a shortage of trained professionals in every discipline, including medicine. In some cases the doctor on duty who inspects the victim is an expatriate whose contract expires and he or she leaves the country before the case can be brought to trial. In other cases, such as the present, the doctor is a local one who goes overseas for further study and experience before the trial takes place. Bringing a doctor back to the jurisdiction not only would involve an interruption of those studies but often the funds to do so are not readily available.

In the present case, the Counsel for the applicant has insisted on cross-examining the doctor. He will not consent to a medical report being tendered instead. Nor, apparently, could any agreement be reached to tender the doctor's deposition.

There has been no deliberate attempt by the prosecution to delay the trial in order to hamper the defence. In fact, quite the opposite. The prosecution have made repeated, although unsuccessful, attempts to have the doctor available.

In regard to this particular factor Powell J. was cited in Bell as follows:

"A valid reason, such as a missing witness, should serve to justify appropriate delay".

(3) The responsibility of the accused for asserting his rights

The history of this case has already been referred to. Until the present application was filed the applicant had never once complained about delay. On all the occasions this case has come before the court there is no record of the applicant ever having objected to an adjournment. In fact, the applicant's counsel Mr Teiwaki did not even bother to come to court on two occasions. Only now, after the case has been fixed for hearing on 7 October next, does the applicant complain about delay. In the circumstances, the prosecution can be forgiven for believing that they would have the time to bring the doctor back to Kiribati.

The following two excerpts from the judgment of Hardie Boys J. in Martin v. The District Court at Tauranga and the Attorney-General (CA (NZ) 3/95, 12 April 1995) are pertinent.

"Delay often suits an accused. I see no reason to vindicate the right of one who allows the process to run its course without objection or complaint and then assets the right only at its culmination".

"Nonetheless I do not think that a person should be entitled to plead undue delay unless he or she has taken such earlier opportunity as there may have been to protest at the delay up to that point".

(4) Prejudice to the accused

This factor should be assessed in the light of the following 3 interests of the accused which the speedy trial right was designed to protect:

(i) to prevent oppressive pre-trial incarceration;

In the present case the accused was granted bail on 17 January 1992 with no onerous conditions.

(ii) to minimise anxiety and concern of the accused;

It is only natural for anyone facing a serious criminal charge to experience some anxiety. However, the failure of the accused to make any complaint at the delay before now indicates that in his case the anxiety is not of an inordinate degree.

In any event, whatever anxiety and concern the accused may be undergoing will cease when the case is dealt with finally on 7th October next.

(iii) to limit the possibility the defence will be impaired.

It was said in Bell that this is the most serious of the three interests.

In the present case the applicant alleges in his affidavit that his defence has been prejudiced by the delay because he has great difficulty remembering the details of the incident.

His affidavit exhibits two statements which he gave to the police on 9th April 1991 in which he claims that he tried to obstruct other people from attacking the victim but eventually had to watch him being beaten to death. That is an experience which would only happen once, if at all, in the life of any person. I would be surprised if the applicant could not remember it. If there are some details he has forgotten then the statements are there to refresh his memory.

In my view the applicant has failed to show that his defence has been impaired by the delay.

In all the circumstances I am of the opinion that the delay in this case has not been unreasonable and that the constitutional right of the applicant has not been contravened.

The application is dismissed accordingly.

THE HON R B LUSSICK
CHIEF JUSTICE
(20/09/96)